Onsongo v Republic [2023] KEHC 152 (KLR)

Onsongo v Republic (Miscellaneous Criminal Application E199 of 2021) [2023] KEHC 152 (KLR) (4 January 2023) (Ruling)

Neutral citation: [2023] KEHC 152 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Criminal Application E199 of 2021

GL Nzioka, J

January 4, 2023

Between

Edwin Nyambaso Onsongo

Applicant

and

Republic

Respondent

(the applicant is seeking for review of the sentence meted against him vide Criminal Case No. 3767 of 2011, at the Chief Magistrate’s Court at Naivasha.)

Ruling

1. By a chamber summons application filed herein on December 16, 2021, the applicant is seeking for review of the sentence meted against him vide Criminal Case No 3767 of 2011, at the Chief Magistrate’s Court at Naivasha. He prays that, the court be pleased to revise the sentence and take into account the provisions of; article 50(2)(p)(q) and section 333(2) of the Criminal Procedure Code. The application is supported by an affidavit sworn by the applicant.

2. The respondent did not file any response to the application. However, I note from the materials placed before the court that, the applicant was arraigned before the Chief Magistrate’s Court charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act and an alternative count of committing an indecent act with a child contrary to; section 11(1) of the said Act. He was subsequently convicted on the main count and sentenced to serve twenty (20) years imprisonment.

3. The applicant subsequently filed appeal at Naivasha High Court No 39 of 2015, that was heard and dismissed in its entirety. Be that as it may, there is an indication that, the applicant has filed an appeal at the Court of Appeal, as both the trial and High Court files have been forwarded to that court.

4. In that case, the application herein to review the sentence based on the provision of section 333 (2) of the Criminal Procedure Code is not tenable as this court became functus officio upon hearing and determining the appeal.

5. I accordingly strike out the current application for want of jurisdiction and/or dismiss it for being an abuse of court process and/or lack of merit.

6. It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 4TH DAY OF JANUARY 2023GRACE L NZIOKAJUDGEIn the presence of:Applicant in person virtuallyMr. Ndiema for the RespondentMs Ogutu-Court Assistant